Reproduced from Kaarina Buure-Hägglund ed., The Finnish National Reports to the Twelfth Congress of the International Academy of Comparative Law (Sydney and Melbourne 18-26 August 1986), Studia Iuridica Helsingiensia, Edidit Institutum Iurisprudentiae Comparativae Universitatis Helsingiensis, Helsinki (1986) 11-26. Reproduced with permission of the author.

Any effort to describe, with some accuracy, the principles adhered to in Finnish law
in the interpretation an application of international Conventions encounters a number
of difficulties. One may point to four reasons for this.

First, there are comparatively few cases in Finland involving international
Conventions. This is the case although Finland, together with the other Scandinavian
countries, is among those countries which frequently ratify international Conventions
in the field of private law. The limited number of cases makes it difficult to deduct
any general principles followed by the courts.

On the other hand, this difficulty is to some extent diminished by the fact that the use
of foreign legal materials in legal reasoning in Finland is quite common both in the
Supreme Court and in the legal doctrine. This is the case within the framework of the
Nordic legal cooperation, which in the field of private law has resulted in a number
of important Acts being identical, or almost identical, in the Nordic countries. This
is the case with the Contracts Act, the Scandinavian Sale of Goods Act, a number of
acts in the field of intellectual and industrial property, the Maritime Codes and other
legislation on transportation, to mention some examples. Even if the uniform
legislation in most cases has not been achieved through Conventions between the
Nordic countries, both the possibilities of using materials from [page 11] the other
Nordic countries and the need to do so has made Nordic lawyers well aware of some
of the problems related to such use. Although no legal obligation to introduce
identical legislation exists, and thus neither any obligation relating to the identical
interpretation of the uniform legislation, the reasons underlying the uniform
legislation does in many cases call for efforts to avoid differences in the
interpretation. The achievements in this field as well as the means for reaching these
results would therefore seem to have some bearing on the question how one may
promote uniform interpretation of international Conventions.

The second difficulty in deducting general principles of interpretation of international
Conventions arises from the fact that the courts in Finland until the last few years
have been rather short when stating the reasons for their decisions. Even today only
the Supreme Court tends to be more elaborate in this respect. It is unusual that a court
would state explicitly the reasons for choosing one of two or several plausible
interpretations of a legal text. Thus one would not likely be as lucky as to find
statements by Finnish Courts where they would expressly deal with the weight
attributed to court decisions of, or opinions expressed in law books, of other
countries.

One is thus forced to deduce the principles from the decision themselves. Here one
faces the third difficulty. The mere fact that the result reached by a Finnish Court
coincides with results reached in other Contracting States, does not necessarily evidence the
fact that the Court has been influenced by interpretations accepted in other countries. The uniformity may be accidental. The Court may have reached the result without
knowledge of the interpretations accepted in other countries, probably believing that
the text does not allow but one result. In order to find out whether this is the case or
whether the decision is based on a thorough scrutiny of foreign Court decisions and
legal writings, one would have to analyze the cases more closely. One would have [page 12] to identify the cases where the court has had access to information about
the interpretations and principles adopted elsewhere and try to ascertain what
influence this information has had on the decision. As the courts do not state in their
decisions whether the court has had access to such materials, either by way of its own
knowledge or because the parties in the presentation of their case have provided the
court with that information, one would have to analyze the files of the Courts. Even
then one may not be certain of the weight attributed to such information.

In Finnish procedural law the principle jura novit curia is observed. The courts are
expected to know the contents of Finnish law. If they are aware of the contents of foreign law that is applicable, they would make use of that knowledge and apply that law ex officio. If not, the general rule is that the court has to request the parties to provide
information on the contents of the law to be applied. In some cases, as in the field of
family law, the court is required to seek the necessary information itself, or through
official channels.

These are the general principles. As far as international Conventions are concerned,
the question is not merely, and in some cases not at all, one relating to enquiries into
foreign law. In the interpretation of an international Convention, the court is basically
faced with the interpretation of an Act of the Finnish Parliament. Here one
encounters the fourth difficulty in ascertaining the principles of interpretation of
Conventions in Finnish law.

In Finland Conventions are not self-executing. The ratification of a Convention
presupposes that the Finnish legislation corresponds to the Convention. In a few
cases this may be true without any changes in national law. In most cases the
provisions of an international Convention in the field of private law must be enacted
through an Act of Parliament. This may be done by means of different techniques.
[page 13] The method used may affect the interpretation and the bearing of the
methods for interpretation.

In some cases the provisions of an international Convention are made applicable as
such. The Convention concerned is made part of Finnish law usually by means of an
Act by Parliament stating that the provisions of the Convention will apply. In many
cases, however, the provisions of a Convention are transformed into Finnish law by
rewriting the provisions in the manner in which Finnish legislation is normally
drafted. This method is in many cases combined with another policy, whereby
provisions identical to those of the Convention or closely related to them are
simultaneously enacted for national transactions of the same kind as those
international transactions covered by the Convention. Thus the provisions of the
Geneva Conventions of 1930 on promissory notes and bills of exchange and checks
respectively have been rewritten into the Finnish acts on promissory notes and bill of
exchange on one hand, and on checks on the other. These Acts are equally applicable
to national bills of exchange and checks. The Maritime Code contains provisions;
corresponding to a number of international Conventions such as the Hague-Visby
Rules, the London Convention of 1976 on limitation of maritime liability, and many
others. The provisions of the Maritime Code are in most cases applicable both to
national and to international operations.

The technique chosen for the implementation of an international Convention has a
considerable effect on the interpretation of the Convention. If the Convention is
incorporated as such, the Convention is applicable in the original languages, in
practice in their English and French versions, which are those reproduced in the
official gazette. The Finnish and Swedish texts are then only translations of the "binding" text. If the
technique of transformation is used, the provisions take the form of a normal piece
of legislation. When applying such a piece of legislation to a purely domestic case
the court may even be unconscious of the fact that it [page 14] is applying an
international piece of legislation. This makes it even more difficult to ascertain the
principles of interpretation of international Conventions.

In the case of the UN-Convention on Sales three different techniques have been
considered and the matter is not definively settled in all the Nordic countries. Under
the first technique, the Parliament would pass an Act stating that the provisions of the
Convention are applicable as such, with the exceptions that may follow from
reservations made, such as the reservation in respect of Chapter II or that in respect
of sales within the Nordic countries. The second technique would consist in an Act
containing a translation word by word of the provisions of the Convention to the
extent the Convention is ratified, that is with a reservation in respect of Chapter II
and with the modifications that would follow from any reservation admitted under
the Convention which are to be made. Such an Act would thus contain a provision
on the scope of applicability of the Convention restricting it to international sales in
which one of the parties has his relevant place of business outside the Nordic
countries. The third technique would be to draft the provisions of the Scandinavian
Acts on Sale of Goods in such a manner that in most cases identical provisions would
be applicable both to international sales falling under the Convention and to domestic
and Nordic sales. In addition, such an Act would have to contain special provisions
in cases where different provisions are desired for domestic and Nordic sales than
those included in the Convention.

It is uncertain how far a court would go in ascertaining the contents of an
international Convention ratified by Finland by means of enquiries into foreign court
decisions and legal doctrine. It seems likely that the extent to which this would be
done depends, among other things, on the technique chosen for the implementation
of the Convention. In addition, it depends on the way in which the parties to a case
argue [page 15] their points. If a Convention is implemented by making it directly
applicable, the parties may become aware of the international character of the case
and may thus introduce materials from other counties relevant to the case. If, on the
other hand, identical provisions are applicable both to domestic and to international
sales, the parties may well argue their case concerning a domestic sale of goods on
a purely national basis and the court may decide it, and even feel forced to decide it,
without looking into the international background.

The following must be read against the background of what has been said above with
all the reservations as to the certainty of the views that are advanced.

The first problem that is raised in the outline set out for this report deals with the
situation where in State A, i.e. Finland, the question arises whether a provision of
the Convention should be interpreted to mean "X" or "Y", and where tribunals and
legal scholars in States B and C have reached interpretation "X". The question is:
what weight, if any, should tribunals in State A give to the interpretation current in
States B and C?

As formulated, the question may aim at two different targets which both seem to be
relevant. On one hand it may be directed to an estimation of how a Finnish court
presumably would deal with this problem if faced with it today. Secondly, the
question may also be directed to the problem where such a state of affairs is
considered to be acceptable and desireable.

As far as the first alternative is concerned, the lack of express statements on the
question causes uncertainty. [page 16] However, in cases where courts are known to
have had access to broad information on the interpretation adopted abroad, and this
information has pointed to a uniform and broadly accepted interpretation, the result
of the Finnish court seems to have coincided with that interpretation. This would
seem to indicate that a Finnish court would, at least in some cases, give considerable
weight to interpretations given in other Contracting States. This view is confirmed
by information available on the interpretation by the Supreme Court of uniform
Nordic legislation, where there seems to be a tendency to adopt a similar
interpretation as that adopted in other Nordic countries unless differences -- intended or unintended -- in the formulation of the of the relevant provision force another
solution. As the Supreme Court has access to the decisions of the Supreme Courts of
the other Nordic countries, there is no problem in following the interpretations
adopted by those other courts. At other levels the courts may use legal literature -- primarily Finnish literature -- which normally contains references to court decisions
at least from Sweden.

The fact that weight obviously is attributed to decisions of courts in other Contracting
States does not answer the question whether this would also be the case where no
general tendency might be deduced from the foreign court decisions, either because
they are two few or because they are conflicting. If such a general interpretation
exists, a party to the Vienna Convention on the Law of Treaties is under Article
31(3)(b) of that Convention under an obligation to take account of such a common
practice in the interpretation of the Convention. It is uncertain to what extent the
courts are aware of the existence of that rule. Nor does the statement answer the
question whether and to what extent the decisions are considered authoritative or
whether they are followed because of the merits of the decisions. A Finnish court
may find the reasoning by the foreign court to be convincing on its merits, not
because it is the reasoning by another court. [page 17]

Turning to the question whether a Finnish court should give weight to the
interpretations concerned, the answer depends on what is meant by the expression
"give weight to". The mere fact that a certain interpretation has been adopted in one
Contracting State cannot mean that the courts of other Contracting States could be
or even should feel bound to follow the same solution. One cannot establish such a
rule on time priority. On the other hand, the existence of an interpretation is relevant
under the Vienna Convention on the Law of Treaties. It may serve as a guide for the
interpretation: a court faced with a problem should avoid choosing another
interpretation if it agrees that the interpretation established is equally plausible as any
other solution contemplated by the court or even if the court agrees that the
interpretation established is reasonable.

The next question raised is what authority, if any, is given to judicial decisions in
Finland.

As in most legal systems, there are mechanisms in Finland to ensure the uniformity
of court decisions. This involves measures to avoid that an accidental majority of the
members of the Supreme Court departs from principles having been established
earlier. The Supreme Court thus gives weight to its earlier decisions which are
followed unless the Court decides otherwise in plenary. Parties to a case may thus
assume that the court will follow its previous decisions and that the decisions thus
lay down the legal rule to be applied.

Within the limits provided by the reference to the Vienna Convention on the Law of
Treaties, a Finnish court is not required to follow judicial decisions in other
Contracting States. This does not mean that the existence of such decisions might not
have an influence on the decision by the Finnish court. They may serve as an
indication of a possible course to be followed by a Finnish court in the future.
However, this is probably the case only if a clean trend could be seen in the decision.
[page 18]

Court decisions preceding the legislation necessary for Finland's ratification of a Convention may in some cases be reflected in the statement on the correct
interpretation of the Convention in the bill introducing the legislation. They may thus
have an influence in predicting future court decisions in Finland.

Next it is asked whether a different approach by the courts would or should result
from the provision in Article 7 of the UN-Convention.

The provision would certainly draw the attention of the courts to the problems of
uniform interpretation and might thus affect the readiness of the court to look into the
matter. It may also draw the attention of the parties to the possibilities of arguing on
the basis of court decisions of other countries. It may do so much more efficiently
than the provisions of the Vienna Conventions on the Law of Treaties on the
interpretation of Conventions. The provision may thus serve as a means of providing
the courts with broader information on judicial decisions from other States. On the
other hand it seems difficult to influence the courts in matters dealing with the
methods of interpretation by provision in the legislation.

The next question deals with the weight given to the legal doctrine. On this point one
may detect an influence from the German tradition in Finland. The views expressed
in the doctrine play an important role both for the parties when presenting the legal
side of their case, and to the judges in considering and formulating their decisions.

In the interpretation of the uniform Nordic legislation it is quite normal in the legal
doctrine that legal writers from the other Nordic countries are referred to. This is also
done in the context of legislation based on international Conventions. In most cases
a writer would cover court decisions of countries he considers to be important in
deciding the future interpretation of the Convention. [page 19]

In deciding a case, the Supreme Court would look into the practice of the Supreme
Courts of the other Nordic countries. This is the case in the interpretation of uniform
Nordic legislation as well as in the interpretation of international Conventions. The
Supreme Court would also take a look at the literature in the other Nordic countries.
In this respect, one may find that the influence of the legal writing across the borders
on the courts has at times been considerable.

Again it would seem that Article 7 would probably not affect the importance given
to such writings but may draw the attention of the courts and the parties to the
possibility of using such materials and thus indirectly increase the influence of such
writings.

Next, I turn to the question of the channels that exist or may be developed for
gathering and communication of interpretations of international rules.

As far as court decisions are concerned, the Ministry of Justice has the possibility,
and has from time to time made use of it, to request the courts to transmit decisions
dealing with specified problems to the Ministry. This has in some cases been done
in order to evaluate the effects of new legislation, and in other cases for purposes
similar to those now in question. This method has proved to be efficient when used
for a limited period of time. It may be used in general or restricted to certain courts
such as the Supreme Court and the Courts of Appeal.

In this way materials are gathered for two publications. One of them contains
decisions by the Supreme Courts of all the Nordic countries covering uniform Nordic
legislation. This periodical is financed by the Ministries of Justice and edited by
reporters from the different Supreme Courts. Finnish decisions are reported in
Swedish which means that they in most cases have to be translated. [page 20]

Secondly, there is a publication containing decisions on maritime and certain other
transport law matters. This publication contains decisions from all courts as well as
arbitral awards.

From this one may judge that channels can be found for gathering decisions on
international Conventions such as those elaborated by UNCITRAL. The choice of the
channels would have to be made depending on the commercial or non-commercial
nature of the publication.

I believe that the collection and presentation of judicial decisions in cases on
international Conventions is an important measure in order to promote the uniform
interpretation of the Conventions. It is too burdensome for the courts to carry out
investigations on such matters themselves due, inter alia, to the limited access to the
relevant decisions and the limited access to qualified personnel to carry out such
investigations in foreign languages. In areas where collections of courts decisions
exist, as on the 1930 Geneva Conventions on Bills of Exchange and Promissory
Notes, such publications are known to be used by the Supreme Court. Secondly, one
may assume that the confidence the courts may have in materials collected by, or
under the auspices of , an international organization must be much greater than the
confidence they may have in the reprentativity of materials presented by one of the
parties to the case.

2.2. Use of legislative history

Next, it is asked whether legislative history may be used in construing domestic
legislation.

This may be done. In legal doctrine this is considered to be a necessary part of the
reasoning. At times one may find that the parties to a case present the legislative
history of the relevant provisions in support of their case. One may also find
references in court decisions to statements in the [page 21]travaux préparatoires.
Although these statements are not binding on the courts, the legislative history of
more recent Acts is considered to be of considerable importance in construing their
provisions. The government bills for new legislation are available in most courts.

In Finland the government bills contain explanations of the reasons for the proposed
legislation as well as of the intended interpretation of the provisions,. These
explanations have until recent years been quite short compared to, e.g. the
corresponding Swedish explanations. For that reason it has not been infrequent to see
references to statements in the travaux préparatoires of the other Scandinavian
countries advanced to elucidate the construction of Finnish legislation in areas of
uniform legislation. During the last years the explanatory comments in the Finnish
bills have grown and it remains to be seen whether and to what extent this may
influence the use of the corresponding Scandinavian travaux préparatoires.

In the legal litterature on international Conventions one may normally find references
to the travaux préparatoires of the Convention. It is generally appreciated that one
must be cautious in using the legal history of Conventions. The reasons for
introducing or supporting a provision given by one or a few delegates are not
necessarily considered to reveal the background of that provision. On the other hand,
in accordance with the Vienna Convention on the Law of Treaties, it is normally felt
that the results of votes at the Diplomatic Conference may be of considerable
importance in the interpretation of the contents of the Convention.

When the legislation enabling Finland to ratify a Convention is presented to the
Parliament, the bill usually contains an explanatory memorandum on the Convention.
This may vary considerable both in length and in quality. In such memorands one
may touch upon the interpretation of provisions of the Convention and even
recommend or exclude a certain type of [page 22] interpretation. The legislation may
also contain provisions on matters which have been left to national law in the
Convention.

When the technique of transformation is used, the legislator may go even further. In
cases where the texts of the Convention in different languages contain differences,
the legislator may choose one of the possible interpretations and reflect that in the
transformed legislation, thus excusing other interpretations. The reason for this is
usually that the legislation is prepared by persons who have participated in the
preparation of the Convention, who therefore may have a more adequate picture of
the intentions behind the Convention than a judge occasionally faced with the
interpretation of a Convention without being well acquainted with international
legislation at all.

The language of Article 7 is thus not in principle relevant to the use of the legislative
history of the Convention but may certainly serve as a reminder to the courts of the
usefulness of looking into that history.

The travaux préparatoires of Conventions and more specifically of the Sales Convention are not made available to all courts nor to all attorneys. A reference to
the Official Records of the Vienna Conference is, however, to be included into the
Bill introducing the legislation necessary for the ratification of the Convention. In
addition, that Bill is going to be unusually extensive. It has been thought necessary to
give a rather detailed picture of the Convention as it is to be used directly by business
circles and by judges and arbitrators. [page 23]

3.1. Recourse to "general principles" on which the Convention is based

The first question dealing with the effects of Article 7(2) concerns the issue whether
law or practice supports the extension of statutory provisions in a manner comparable
to the one authorized in this provision.

I believe that, in general terms, an approach similar to the one expressed in Article
7(2) would be adopted in corresponding cases. In interpreting an Act, one does not
limit oneself to the dissemination of individual provisions of the Act, but may also
draw conclusions from the general arrangement of the provisions, or apply the
principles appearing from the provisions to cases falling outside the scope of the
provisions or of the Act itself. Occasionally, one may also consider a provision -- although the wording of the provision is limited to certain questions only -- to express
a general principle to be applied also in cases falling outside the scope of the
provision as worded. It is difficult to describe with any certainty the extent to which
this is done. My impression is that this is not an infrequent course of action.
However, in such cases the judge operates within the framework of a legal ideology
known to him. This may facilitate considerably his task of establishing the general
principles underlying the legislation, especially as the judge usually would find some
statements as to the objectives of new legislation in the travaux préparatoires.

I find it difficult to answer the question whether the satisfaction or criticism in
Finland with respect to the use of general principles would be applicable to the Sales
Convention. The risk of believing that one's own evaluations are shared by others is
too great. May guess would be that little attention would be paid to this and that the
solution [page 24] would rather be sought in national law, on the assumption that the
issue before the court has been left open in the Convention. I fear that the provision
may be used in efforts to make solutions seem legitimate where the support to be
found for the solution in the Convention itself is weak or inexistent.

In the discussions of the general principles in Finland reference has been made to two
general principles which are thought to be reflected in the Convention, i.e. a general
obligation of loyalty towards the other party to the contract and, as a special case of
that rule, the duty of a party to limit the damage caused by the breach of contract of
the other party in order to diminish the compensation that may be payable by the
other party.

In the interpretation of Article 7(2) there is a need to be cautious so as not to cause
disparity in the interpretations of the Convention by detecting different general
principles in the Convention.

3.2. Interpretation to promote good faith

There is no general express rule imposing an obligation of good faith in Finnish law.
There is, however, a great number of specific provisions supporting the suggestion
that such a principle exists. None of those provisions are formulated as principles of
interpretation of statutory provisions. The most important of the provisions
concerned seems to be the general rule on adjustment of contracts, enabling a court
to adjust any provision in a contract which is considered to be unjust, or the
application of which leads to an unjust result. This provision goes much further than
to protect good faith, as it may apply irrespective of the knowledge of either party of
the possible effects of a provision in the contract. The provision may i.e. be applied
in cases where a stronger party imposes his own standard terms on a weaker party,
the terms being unfair to the latter. [page 25]

This provision is, at least in principle, also applicable when Finnish law is to be
applied to an international contract, although it is believed to be of a rather limited
use in that context. In international contracts one may assume considerable
knowledge and accuracy by the parties. It is uncertain whether the general rule on
adjustment may be applied if the contract is subject to foreign law. The answer is
probably in the negative. The provisions would not likely be applicable in cases to
which an international Convention is applicable to the extent the issue concerned is
settled by the Convention.

In addition to the introductory remarks made at the outset one may point to one
common feature in the literature on the Sales Convention. Most authors seem to
stress that the Convention closely resembles the national law on sales of the author's
country. That suggestion is likely to be true. Still, one cannot avoid the impression
that it reveals a tendency to find well-known features in the Convention and to see
them as a confirmation of the national law on sales. There is thus a considerable risk
that concepts used in the Convention will be believed to correspond to identical or
even to similar concepts in national law. [page 26]